Unlearning Liberty - Greg Lukianoff

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the concept as a catchall for any expression that offends someone.

      FIRE has been naming a Speech Code of the Month every month for over seven years, and there is no risk that we will run out of outrageous codes. Here is a list of some of the colleges that were awarded the dubious distinction of “Speech Code of the Month” by FIRE.26 Note the hasty throwing together of crimes, like assault, or unprotected speech, like threats, with clearly protected speech, like jokes:

      

      

      

      Several of the codes we have “honored” as Speech Codes of the Month were changed or reformed not long after being announced, likely due to public embarrassment. But speech codes are often like a multiheaded hydra: cut off one and a new one grows in its place. If there is a will to censor on campus, administrators will find a way.

      I occasionally meet people who recognize that such overbroad policies ban a tremendous amount of protected expression, but think this is okay because they trust college administrators to administer these codes fairly. This idea is both naïve and even disingenuous; often, the very same people would be horrified if vague, amorphous laws controlling speech were placed in the hands of, say, Presidents George W. Bush or Barack Obama. And the worst of campus administrators don’t even limit themselves to the extraordinarily broad definitions of their codes.

      Of course, if campus administrators honestly and consistently applied campus speech codes, they wouldn’t last a day, because they sweep in so much protected speech that the overwhelming majority of students could be found guilty. Professors and students wouldn’t put up with it and speech codes would end forever. Speech codes can survive only through selective enforcement. What administrators and advocates of restricting free speech want you to forget is that any such restrictive policy sets flawed human beings in charge of deciding what can and cannot be said. As any First Amendment lawyer knows, the first thing to go is any speech that criticizes or annoys those who decide what speech is free. It should therefore come as no surprise that the most frequently censored opinions on campus are those that are unpopular with campus administrators.

      Before I discuss how administrators abuse harassment rationales, it’s important to understand what harassment means in the law. Sexual and racial harassment are fairly well-defined legal concepts. Certain examples are easy to identify: quid pro quo harassment—that is, if an employer demands sex for a promotion—is universally agreed to be harassment. The vagueness comes in with the concept of “hostile work environment” harassment, especially in the peculiar environment of the university, where you must allow a robust exchange of ideas on concepts including sexuality among young men and women who often can’t stop thinking about sex.

      While fitting the definition of harassment to the college environment might sound like a puzzle, the good news is that the Supreme Court has already provided a definition that balances the protection of students from harassment with the importance of freedom of speech. In Davis v. Monroe County Board of Education, the Court gave its only ruling on the application of harassment to the educational environment.27 In that case, the Court dealt with harassment allegations in the K–12 context, but its formula for deciding when to hold an educational institution liable for discrimination is also the correct standard for defining harassment on college campuses. “The Davis standard,” as I call it, defines harassment as unwelcome discriminatory behavior, directed at a person because of his or her race or gender, that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”28 The Davis standard expertly balances legitimate concerns about actual discrimination and harassment with protection of free speech, while not overburdening universities with unrealistic obligations to police every aspect of their students’ lives.

      The Davis standard is a serious answer to a serious problem. Those of us who believe in stopping genuine discriminatory harassment are done no favors by a reinterpretation of harassment that wrongly creates a generalized “right not to be offended.” This erosion of the seriousness of sexual harassment became apparent to me during the controversy surrounding Herman Cain, a Republican presidential candidate, in 2011.29 The media seemed astonished that the initial claims of harassment against Cain were greeted by the public with some ambivalence and skepticism. That ambivalence started to subside as more accusers came forward and the allegations began to sound more like quid pro quo harassment and even assault.30 But I believe that the initial lack of scandal stems largely from the fact that harassment is often invoked too lightly and in contexts where it does not really belong, especially on campuses. Supporters of racial and sexual harassment laws should be striving to bring the campus definition of such harassment back in line with its legal definition—and with free speech.

      Any discussion of campus abuse of harassment codes must start with the example of Keith John Sampson, a middle-aged student and janitor at Indiana University–Purdue University Indianapolis. In 2007, Sampson was working his way through college when he was found guilty of racial harassment for reading a book in public. Some of his coworkers were offended by the cover of the book, Notre Dame vs. the Klan, which included a black-and-white picture of a Klan rally.31 Even though Sampson explained to them that it was a history book celebrating the defeat of the Klan in a 1924 street fight, the school found Sampson guilty of racial harassment for “openly reading [a] book related to a historically and racially abhorrent subject.”32 Without even giving him a hearing, the administration imposed a death sentence on Sampson’s career: any future employer would be likely to assume that a finding of racial harassment meant Sampson was a Klan member rather than the reader of a book about their defeat.

      A student being punished because his university literally falsely judged a book by its cover should have been an irresistible human interest story. But despite the intervention of both the American Civil Liberties Union of Indiana and FIRE, the case received little media attention at the time.33 Dorothy Rabinowitz published a column about the case in the Wall Street Journal over the summer of 2008, but it never approached the iconic infamy of the “water buffalo” case.34 It seems that most Americans were beginning to take such incidents for granted. I suspect that many view stifling political correctness as a silly, unfortunate, yet mostly harmless part of the collegiate landscape. But as the Sampson case shows, it is far from harmless. Such cases help legitimize knee-jerk reactions to speech that offends, while ingraining a defensive and apologetic attitude about even the most modest exercise of free speech.

      Another wild abuse of harassment codes took place at the University of New Hampshire in 2003, when student Tim Garneau was found guilty of harassment, disorderly conduct, and violating the school’s affirmative action policy for making a flyer that joked that girls could lose the “freshman 15” by taking the stairs.35 Garneau posted the flyers because he was angry that some students would take the elevator up just one floor and even down one floor, which slowed elevator service for students who, like him, lived on the seventh floor. The flyers, which were torn down within two hours, read in their entirety: “9 out of 10 freshman girls gain 10–15 pounds. But there is something you can do

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